What Are the Requirements to Make a Last Will and Testament?

A key step people take in life is estate planning. Part of a comprehensive estate planning process may be the creation of a last will and testament. With that noted, an important question associated with estate planning is what are the requirements to make a valid last will and testament?

Lawful Age

In all states in the country, including California, a person needs to be 18 years old to legally create a will. There are some exceptions to the 18-year old requirement. These include:

  • An emancipated minor can create a last will and testament. An emancipated minor is one who has been freed of the legal control of a parent or other guardian.
  • A minor who lawfully marries may be in a position to create and execute a last will and testament. California actually lacks a minimum age that allows a child to marriage. Only a few states lack a law establishing a minimum age to marry. Although lacking a minimum age to marry, anyone under 18 needs to obtain parental permission to marry.
  • If a person is able to join the armed services before the age of 18, that individual may be able to create and execute a last will and testament as well.

Sound Mind

In addition to being of a lawful age, or the existence of an exception to that requirement, a person must also be of sound mind to create a last will and testament. For the purposes of creating and executing a will, sound mind means:

  • Understands the nature and extent of his or her property or assets.
  • Understands the purpose behind creating and signing a last will and testament.
  • Understands that a last will and testament is a legal instrument that distributes property in the manner set forth in that instrument.

Witnesses

In order to make a valid will in the state of California, two people over the age of 18 and of sound mind need to witness the maker’s signing of the instrument. A witness cannot be included as an heir in the will. If a person that is a heir in the will is also a witness, California law presumes that this individual used undue influence on the person who created the will. In such a situation, the heir and witness bears the legal burden of demonstrating to the probate court that he or she didn’t use undue influence on the person who created the will to be included as an heir. In some cases a person who is both a witness to and an heir in a will ends up disinherited by the probate court.

Unlike many states, California does not require the presence of a notary public when a last will is being signed. These requirements apply to a last will and testament created using a standard form or drafted by a lawyer.

California law also permits a person the ability to create what is known as a holographic will. A holographic will is one that is handwritten by an individual. The document does need to be signed by the person who created. It does not require any witnesses.

If a Will is Found Invalid

If a last will and testament is found to be invalid by a probate court, one of two possible results can occur. First, the assets of the deceased person can pass or be distributed vis what legally is known as intestate succession. Intestate succession if the process of distributing a person’s property after death according to the provisions of state law. In other words, the property goes to a deceased person’s family in accordance with probate statutes.

In the alternative, if the deceased person had a prior last will and testament, the passing of assets could be undertaken in the manner set forth in that pervious will. The legal theory is that if the new will cancelled the old one, when the new will is invalidated, the older one is no longer “cancelled.”

There is a significant problem with each of these approaches. Odds are that they are not going to distribute property in the manner set forth in the will that was invalidated by the probate court.

Understanding the truly negative consequences that can flow from an invalidated will underscores the reason why a person desiring to create a will should seek legal assistance. By hiring a lawyer, the odds for mistakes – including fatal ones – in a last will and testament are reduced.

The first step in retaining a lawyer is scheduling what commonly is called an initial consultation. During an initial consultation, an estate attorney provides an overview and analysis of a person’s estate planning needs. As a matter of general practice in California, and across the United States, there is no fee charged to a prospective client for an initial consultation.